Practical Guide to the Child Status Protection Act (CSPA) - Part 1

What is the Child Status Protection Act?

The Child Status Protection Act, more popularly known as the “CSPA,” is a special law that provides relief to children who “aged out” or turned 21 years old as a result of delays in the processing of family-based and employment-based immigrant petitions, asylum and refugee applications, and diversity visa applications by immigration agencies. The CSPA does this by freezing the age of the child at a certain point in time, provided that certain requirements have been met. It was passed by Congress and signed into law by then President George W. Bush on August 06, 2002.

Prior to the enactment of the CSPA, once a person turns 21 years old, he loses his preferential status as a “child.” Under Section 101(b)(1) of the Immigration and Nationality Act (hereafter referred to as “INA”), a “child” is generally defined as an unmarried person who is less than 21 years old. A person who qualifies as a “child” is entitled to certain immigration benefits that are generally not available to others. Because of the CSPA, certain individuals may still retain their status as children even if they have already turned 21 years old, thereby allowing them to be reunited with members of their families who are already here in the United States.

What cases are covered by the CSPA?

The CSPA applies to the following:

• Beneficiary seeking immigrant status as child of a U.S. citizen;
• Direct or derivative beneficiary seeking immigrant status in a family-based case, employment-based case, or diversity visa case;
• Derivative beneficiary seeking status as an asylee or refugee; and
• Beneficiary seeking immigrant status as unmarried son or daughter of a lawful permanent resident.

The State Department made further clarification regarding CSPA coverage in its regulations. According to the State Department, the CSPA applies only to immigrant visa classifications expressly specified in the statute and does not provide child age protection for nonimmigrant visas [i.e., K or V]. In addition, although derivative beneficiaries in refugee and asylum cases are generally covered under the CSPA, the State Department excluded the direct and derivative beneficiaries of petitions under the following programs:

• Nicaraguan Adjustment and Central American Relief Act
• Haitian Refugee Immigrant Fairness Act
• Family Unity
• Cuban Adjustment Act
• Chinese Student Protection Act
• Special Immigrant Juvenile

Retroactive Application of the CSPA

According to the latest decisions of the Board of Immigration Appeals (hereafter referred to as “BIA”) and federal courts, and based on most recent memorandums issued by the U.S. Citizenship and Immigration Services (hereafter referred to as “USCIS”) and by the State Department, the CSPA applies whether the beneficiary aged out before or after its enactment date, so long as the immigrant petition was filed before the beneficiary turned 21 years of age, and provided that no final decision is reached on an application for lawful permanent residence as of August 06, 2002.

The CSPA, therefore, applies to all beneficiaries of immigrant petitions approved before August 06, 2002, pending as of that date, or filed after said date, whether said beneficiaries aged-out before or after the enactment date, provided the immigrant petition was filed when the beneficiary was still a minor or below 21 years old. It only excludes from coverage those cases where the beneficiary had applied for adjustment of status to lawful permanent resident or had applied for an immigrant visa and received a final decision before August 06, 2002.

What are the benefits under the CSPA?

There are three ways (3) by which one may benefit from the provisions of the CSPA.

First, one may request for the re-computation of his age in accordance with the rules stated under the CSPA. The following beneficiaries may request for recalculation of their age under the CSPA:

• Child of U.S. citizen in an immediate relative case who turned 21 years old while the case is pending;
• Child of lawful permanent resident in a family-based case, employment-based case, or diversity visa case who turned 21 years old while the case is pending; and
• Child of an asylee or refugee in a derivative asylum or refugee case who turned 21 years old while the case is pending.

Second, one may request for the retention of the priority date of his parent’s case and automatic re-classification of his preference category pursuant to the provisions of the CSPA.

Last, but not least, according to the CSPA, one may request the revocation of the automatic upgrade from F-2B category [petition of lawful permanent resident on behalf of unmarried son or daughter] to F-1 category [petition of U.S. citizen on behalf of minor unmarried child] of the petition caused by the petitioner’s naturalization or request that such upgrade from F-2B category to F-1 category not occur despite the naturalization of the petitioner.

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Attorney Eugene M. Palacios is the founder and principal of the Law Offices of Eugene M. Palacios. He has more than 20 years of experience and a successful track record in handling CSPA cases, waiver cases, humanitarian reinstatement cases, employment-based and family-based petitions, PERM and naturalization applications, as well as other types of immigration applications.

If you want to know more about this topic, then we invite you to schedule an appointment for your free initial office consultation by calling us at (626) 331-8188.

The above article does not and is not intended to constitute legal advice for a specific immigration problem, and does not create an attorney-client relationship between our office and the reader. It is for informational purposes only and reflects our law firm’s opinions and views on general issues.

Copyright 2022. Law Offices of Eugene M. Palacios. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without prior written permission from the author.